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Ozone Update: States and Industry Wrestle with 2008 and 2015 Standards

States and industry continue to react to the EPA’s October 26, 2015 rule tightening the ozone National Ambient Air Quality Standard (NAAQS) from 75 ppb under the 2008 standard to 70 ppb. States, including Kentucky, and industry groups have petitioned the D.C. Court of Appeals to review the rule in a case now consolidated as Murray Energy Corporation v. EPA, (D.C. Cir No. 15-1385). The petitioners argue that background ozone, occurring naturally in the environment, could make it virtually impossible for some regions to attain the new 70 ppb standard. EPA has generally acknowledged that background ozone is a consideration in assessing the concentration in an individual region, but it contends that background ozone is insufficient to prevent any region from meeting the NAAQS. State petitioners filed their opening brief on April 22, 2016 arguing, among other things, that EPA failed to consider the effect of uncontrollable emissions on peak days and that relief measures promised by EPA are impractical and misapply portions of the Clean Air Act intended for exceptional rather than routine events. Industry petitioners further argue that EPA failed to take into account “relevant contextual factors, including the adverse social, economic, and energy impacts of those more stringent standards” and did not support the standards with a reasoned analysis and relevant scientific evidence.

Outside of litigation, EPA has received criticism for not developing ozone NAAQS screening tools that could help expedite permitting for projects that demonstrate minimal ozone impact. Traditionally, screening tools have been used for determining whether emission levels of a pollutant subject to a NAAQS standard would subject a permit application to Prevention of Significant Deterioration (PSD) review. Prior to finalizing the standard, EPA had indicated in a memo that it would propose screening tools by September, 2016; however, EPA’s current rulemaking schedule still lists screening tools for proposal but does not project a date.

Even as EPA moves ahead with the 2015 standards, a coalition of environmental groups in Southern California is challenging EPA’s implementation conditions for the 2008 ozone air standards claiming the rule risks backsliding once a region achieves attainment under the NAAQS. According to the petitioners, the revocation of the 1997 NAAQS allows some areas to maintain existing control measures, regardless of whether those measures fail to result in attainment. South Coast Air Quality Management District (SCAQMD) v. EPA, et al., No. (D. C. Cir. No. 15-1115). The petitioner also argues that by revoking the 1997 NAAQS, EPA weakened anti-backsliding protections for areas in attainment, weakened requirements to show progress towards emissions reductions, eliminated the requirement to implement control technology, and eliminated the requirement for creation of a 10-year air quality maintenance plan.

On March 17, 2016, Rep. Pete Olson (R-Texas) introduced in the U.S. House of Representatives the Ozone Standards Implementation Act of 2016 (H.R. 4775), which would extend the date for final designation of areas under the 2015 ozone NAAQS to 2025. The bill would change the mandatory review of NAAQS from five to 10 years, authorize EPA to consider technological feasibility when revising NAAQS, and require EPA to submit a report to Congress within two years regarding the impacts of foreign emissions on NAAQS compliance. The legislative changes, if enacted, would allow the 2008 ozone NAAQS to be attained before implementing the 2015 standards.

Easing of hurdles faced in demonstrating attainment with stringent NAAQS standards becomes even more important given the requirements for redesignation of an area from nonattainment to attainment. Attainment of the standard is only one component of the redesignation demonstration under the Clean Air Act, which also requires: 1) the nonattainment SIP has been fully approved by EPA; 2) EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions; 3) the state has met all applicable requirements for nonattainment plans and other general requirements under the Act; and 4) EPA has approved a maintenance plan for the area, including contingency plans that provide for maintenance of the NAAQS for at least 10 years after redesignation. On March 28, 2016, the Supreme Court denied certiorari in, and thus upheld, a Sixth Circuit decision that EPA had impermissibly determined that reasonably available control technology (RACT) and reasonably available control measures (RACM) in a SIP were only necessary if needed to attain the air quality standard for the pollutant at issue in the case. Ohio v. Sierra Club, 2016 U. S. LEXIS 2221, 84 U. S. L. W. 3543, The Sixth Circuit’s decision stands for the proposition that no requirement can be “skipped” even if the area is otherwise shown to have attained the NAAQS.

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